The Employment and Support Allowance Regulations 2013

A claimant who works to be treated as not entitled to an employment and support allowance E+W+S

37.—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.

(2) Paragraph (1) does not apply to—

(a) work as a councillor;

(b) duties undertaken on either one full day or two half-days a week as a member of the First-tier Tribunal where the member is eligible for appointment to be such a member in accordance with article 2(3) of the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 M1 ;

(c) domestic tasks carried out in the claimant's own home or the care of a relative;

(d) duties undertaken in caring for another person who is accommodated with the claimant by virtue of arrangements made under any of the provisions referred to in paragraph (7) or where the claimant is in receipt of any payment specified in that paragraph;

(e) any activity the claimant undertakes during an emergency to protect another person or to prevent serious damage to property or livestock; or

(f) any of the categories of work set out in regulation 39(1) (exempt work).

(3) This regulation is subject to regulation 40 (effect of work on entitlement to an employment and support allowance where claimant is receiving certain treatment).

(4) A claimant who does work to which this regulation applies in a week which is—

(a) the week in which the claimant first becomes entitled to a benefit, allowance or advantage on account of the claimant's limited capability for work in any period; or

(b) the last week in any period in which the claimant has limited capability for work or is treated as having limited capability for work,

is to be treated as not entitled to an employment and support allowance by virtue of paragraph (1) only on the actual day or days in that week on which the claimant does that work.

(5) Regulation 86 (linking rules) does not apply for the purposes of calculating the beginning or end of any period of limited capability for work under paragraph (4).

(6) The day or days in a week on which a night worker works, for the purposes of paragraph (4), are to be calculated by reference to regulation 24 (night workers).

(7) The payments and provisions mentioned in paragraph (2)(d) are—

(a) any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(i) by a local authority under section 22C(2), (3), (5) or (6)(a) or (b) of the Children Act 1989 (provision of accommodation and maintenance for a child whom the local authority is looking after) M2 ;

[F1 (ia) under section 81(2), (3), (5) or (6)(a) or (b) of the Social Services and Well-being (Wales) Act 2014 (ways in which looked after children are to be accommodated and maintained);]

(ii) by a local authority under section 26 [F2 or 26A] of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority [F3 and duty to provide continuing care]) M3 ;

(iii) by a local authority under regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances) M4 ; or

(iv) by a voluntary organisation under section 59(1)(a) of the 1989 Act (provision of accommodation by voluntary organisations) M5 ;

[F4 (aa) any payment made to the claimant under section 73(1)(b) of the Children and Young People (Scotland) Act 2014 (kinship care assistance);]

(b) any payment made to the claimant or the claimant's partner for a person (“the person concerned”), who is not normally a member of the claimant's household but is temporarily in the claimant's care, by—

(i) [F5 NHS England];

(ii) a local authority but excluding payments of housing benefit made in respect of the person concerned;

(iii) a voluntary organisation;

(iv) the person concerned pursuant to section 26(3A) of the National Assistance Act 1948 M6 ;

[F6 (v) an integrated care board established under Chapter A3 of Part 2 of the National Health Service Act 2006;]

(vi) a Local Health Board established by an order made under section 11 of the Health Service (Wales) Act F7 [F8 ...

(vii) the person concerned where the payment is for the provision of accommodation in respect of the meeting of that person’s needs under section 18 or 19 of the Care Act 2014 (duty and power to meet needs for] [F9 care and support); or]

[F9 (viii) the person concerned where the payment is for the provision of accommodation to meet that person’s needs for care and support under section 35 or 36 of the Social Services and Well-being (Wales) Act 2014 (duty and power to meet needs for care and support of an adult).]

(8) In this regulation—

“week” means a week in respect of which a claimant is entitled to an employment and support allowance;

“work” means any work which a claimant does, whether or not that claimant undertakes it in expectation of payment;

“work as a councillor” includes any work which a claimant undertakes as a member of any of the bodies referred to in section 177(1) of the Local Government Act 1972 or section 49(1) or (1A) of the Local Government (Scotland) Act 1973 M7 , of which the claimant is a member by reason of being a councillor.

Textual Amendments

F1 Reg. 37(7)(a)(ia) inserted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 18(a)

F2 Words in reg. 37(7)(a)(ii) inserted (7.11.2017) by The Social Security and Child Support (Care Payments and Tenant Incentive Scheme) (Amendment) Regulations 2017 (S.I. 2017/995), regs. 1, 15(2)(a)

F3 Words in reg. 37(7)(a)(ii) inserted (7.11.2017) by The Social Security and Child Support (Care Payments and Tenant Incentive Scheme) (Amendment) Regulations 2017 (S.I. 2017/995), regs. 1, 15(2)(b)

F4 Reg. 37(7)(aa) inserted (7.11.2017) by The Social Security and Child Support (Care Payments and Tenant Incentive Scheme) (Amendment) Regulations 2017 (S.I. 2017/995), regs. 1, 9(2)

F5 Words in Instrument substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F6 Reg. 37(7)(b)(v) substituted (1.7.2022) by The Health and Care Act 2022 (Consequential and Related Amendments and Transitional Provisions) Regulations 2022 (S.I. 2022/634), regs. 1(2), 66(2)

F7 Word in reg. 37(7)(b)(vi) omitted (3.11.2017) by virtue of The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 18(b)(i)

F8 Reg. 37(7)(b)(vii) and word inserted (1.4.2015) by The Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 (S.I. 2015/643), art. 1(2), Sch. para. 42(b) (with art. 4)

F9 Words and reg. 37(7)(b)(viii) substituted for words in reg. 37(7)(b)(vii) (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 18(b)(ii)

Marginal Citations

M1 S.I. 2008/2692. Article 2(3) was amended by S.I. 2009/1592.

M2 1989 c.41. Section 22C was inserted by section 8(1) of the Children and Young Persons Act 2008 (c.23).

M3 1995 c.36. Section 26 was amended by Schedule 3 to the Adoption and Children (Scotland) Act 2007 (asp 4) and paragraph 9 of Schedule 1 to the Children and Young Persons Act 2008.

M4 S.I. 2009/210. Regulation 33 was amended by S.S.I. 2009/290.

M5 Section 59(1)(a) was amended by section 49 of the Children Act 2004 (c.31).

M6 1948 c.29. Section 26(3A) was inserted by section 42 of the National Health Service and Community Care Act 1990 (c.19).

M7 1973 c.65. Section 49(1) was amended by Schedule 7 to the Local Government (Scotland) Act 1975 (c.30) and S.S.I. 2007/265. Section 49(1A) was inserted by paragraph 46 of Schedule 6 to the Local Government (Scotland) Act 1975.